Cryopreservation of embryos: what happens in case of divorce?

Apr 14, 2021

A recent decision was taken by a lower Court that stated that a spouse can use the embryos without the need of the other spouse’s consent.

In Italy, medically assisted procreation is ruled by Law n.40/2004. This law states that it is possible, for heterosexual couples – either married or cohabiting – to be helped with artificial techniques once they have tried all the options to procreate and no therapeutic method had been effective in solving their diagnosed fertility problem.

In 2009, the Italian Constitutional Court consented the Cryopreservation of embryos, by modifying Law n.40/2004. Cryopreservation is the process of freezing and storing embryos and it is part of most in vitro fertilization programs. Before the Court’s intervention, the law allowed the fertilization of a maximum of three eggs, which would be implanted simultaneously into the uterus of the mother.

Facts of the case

A married Italian couple decided to proceed with medically assisted procreation (MAP). However, since their first attempt was not successful, they decided to freeze the fertilized eggs for future attempts. As time passed by, the husband decided to divorce his wife, while she still had the desire to be a mother. The woman appealed before the Italian Court, alleging her right to be a mother by using the frozen eggs without his consent as she was no longer married to her ex-husband.

The Court’s decision, delivered on January 27th, 2021, was based on Art. 6 para. 3 of Law n.40/2004 which stated: ‘the will to conceive through MAP, can be revoked by either of the parents only until the egg’s fertilization.’ Being the frozen eggs already fertilized, the ex-husband could not revoke his consent.

The Court envisaged the prevalence of the right of the woman to use the fertilized eggs that had previously been legally frozen with the consent of her husband, although at the moment of the woman’s fecundation the husband’s consent was absent. She stated:

“I don’t think it is fair to have your parental responsibilities taken away from you, I am grateful that the Court gave me and my child this opportunity”.

(This article was written by Olimpia Ballardin)

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